DOJ filing rightly getting attention for going after ACLU lawyers, but note also attempt to vacate lower court opnhttp://apps.washingtonpost.com/g/documents/politics/justice-department-petition-in-jane-doe-abortion-case/2615/ …
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That's a fairly common species of SG footnote: To preemptively reconcile (or explain) how current positions fit with past positions.
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Is it a change, though? They say "this is consistent with it, and even if not, this is an unusual circumstance."
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Yes I recognize they are trying to distinguish rather than acknowledging change in position, as DOJ has done now in a number of cases
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Question is whether their argument to distinguish case is persuasive.
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It also rests on a dubious premise--that 5 members of the Court would have stayed DC Circuit decision pending SCOTUS review.
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